*1 3204(a) (1996 Repl.). shooting To the extent at him even while he was started objects to custody police, Goodall characterization there were shots (2) “gunfight,” description fired”; got jammed events as was being “He’s improper, we have in detail discussed gun, why guys are and we don’t know these prosecutor properly sought above. The people shooting him.... are knowWe jury assure focused on whether Goo- people at him. You know these are so mad had, fact, possessed gun. dall Conse- they shooting police him are at while quently, prosecutor jury reminded him.” that there was have Goodall contends guilt that Goodall could not be exonerated of person not “one shred of evidence” that charges shooting even if someone was persons shooting at Goodallwere “mad” throughout evening. himat the entire agree government him. with the We while there was no direct evidence of Second, during argument, his rebuttal mind, state of it was reasonable for shooters’ prosecutor commented: prosecutor they to conclude were [Goodall], police [the When saw he officers] they mad at Goodall from the fact that were shooting gun]. wasn’t You don’t have [the gunfire shooting at him. inference from This shooting to decide whether he was it. You hardly credulity. strains the limits of There- can make that this inferences fact fore, aspect that this we cannot conclude [gun] only holds 26 bullets and there ivas prosecutor’s argument improper. was by they stopped .... the time him He prosecutor’s argument handed, GoodalPs contention of this Goodall wasn’t right off. Because passage. hand] objects only and the holding if he were ... police it like he was it would general here is shooting officers the italicized because was rip his responsive thrust of the claimed that he shooting right [with portion hand left- it. to Accordingly, by ments its discretion count. Affirmed. Goodall on conclusion, íJí during closing addition, % appeal, the trial court did not abuse failing judgment appealed [*] arguments, challenged to sever the ex-felon were not prosecutor’s v [*] improper. from is state- [*] pants holding gun he was in his with his hand,
right police officers’ prosecution responded
not credible. The filing gun
that he was not when the right
police weapon him in his saw with unnecessary for the
hand and that it was
jury previously he had to decide whether noted, gun. prosecutor none-
fired the al., ROSS, Appellants, Cornelia F. et left-handed, theless, gun that Goodall was could avoid was modified so that shooter left-handed, injury only by firing it serious COOPERATIVE, HACIENDA “miss- and five rounds of ammunition were INC., Appellee. above, weapon. ing” from the As discussed govern- reasoning supports the this line of No. 94-CV-803. reasonably and is ment’s version of events Appeals. Court District Columbia by upon introduced both based the evidence during trial. government Goodall Argued Sept. 1995. pros The final two statements Nov. Decided alleges improper were ecutor that Goodall fired at the fact that shots were concerned police he taken into even after
Goodall objects to the
custody. Specifically, Goodall (1) guys
following “[T]hese two statements: they pretty mad at him because still *2 building apartment of roofs on a five
complex Washington. The Dis- Southeast repaired trict the roofs after the seller failed so, pur- and assessed the cost to the do purchaser to in- chaser. District’s stall new roofs because the faulty. were An addendum to the sales con- specified Property was to be tract is,” but, pursuant supplemental sold “as agreement, part pur- the seller $80,000, price, chase in escrow to cover the or the cost of roof re- District’s assessment pair. equita- buyer sued the seller on both claims;
ble and however the relief sought on both the and claims involved a for the roof sum trial, At the conclusion of a bench imposed court a constructive on the tax paid assessment refund and ordered it to be buyer, though even ruled buyer on its claims. The seller contends that the trial court committed imposing error in a constructive trust after claims, dismissing buyer’s legal and that properly belongs the tax refund to the seller. We remand the to the trial court case for findings. additional factual I. FACTUAL BACKGROUND Ross, et al. Appellants Cornelia F. (“the Venturers”) joint venturers undertaking real estate known as the Hacien- (“the Venture”). da Joint Venture Apart- Joint Venture owned the Hacienda ments, building complex a five in Southeast (“the Washington Property”). January On Luehs, DC, Washington, Richard W. with 31, 1989, Association, the Hacienda Tenant whom P. David Blackwood and Lauren C. (“the Association”) Inc. Tenant entered into a Mullen, DC, brief, Washington, were on the purchase Property contract for the appellants. for $795,- from the Joint Venture for the sum of DC, Goergen, Washington, Michael J. 13, 1989, February 000.00. A Addendum to appellee. specified the Sales Contract that would be in an “as sold is” condition. WAGNER, Judge, Before Chief REID, Judges. Associate Coop- SCHWELB On the Hacienda October (“Hacienda”) erative, incorporated Inc. REID, Judge: Associate purpose acquiring, Delaware for the dispute owning operating This case concerns a as to whether as a limited buyer equity housing cooperative in properly the seller or should be award- the District of origi- the Tenant ed a refund of tax assessment monies Columbia. Hacienda succeeded nally paid purchaser Property un- to the District of Columbia Association Property’s January 31,
der the and Venturers set aside sales contract February Closing- price. participants purchase addendum.1 One place closing Property testified at trial took between Novem- During post ber 13 December 1989.2 settlement escrow below, closing period, as indicated signed 1989. Para- on November *3 supplemental agreement executed a under in graph agreement provided 1 of the escrow $80,000 in which the Joint agent Venturers in an part shall hold “[e]scrow repair. to cover cost of the roof escrow the bearing sum interest escrow account the total $82,000 ..., and of as reflected on Lines 516 Property, Prior to the sale the tenants of for the 517 of Settlement Statement complained leaking had about roofs and other ” Paragraph of Settlement sale.... 2,1987, February problems. petition On a repair specified “roof escrow— Statement tenants, Jackson, George behalf of P. seven $80,000.” reference to the There was no 20, 810, Vijon Realty, TP et al. v. was filed notice letter. The re- District’s assessment with the Rental and Accommodations Con- $2,000, Paragraph 517 maining according to Department version of Division Con- Statement, “me- covered a of the Settlement (“DCRA”). Regulatory sumer and Affairs lien chanics escrow.” petition record, part is but not of testimony petition at there was trial 21, 1989, On November the Joint Venture complaints a re- concerned about substantial (individually twenty-seven and about tenants a duction of to the facilities and sendees Association) of the Tenant and on behalf request for a rent rollback.3 agreement a executed and release settlement 20, petitions, regarding of tenant TP one deficiency a housing DCRA issued notice provided that if the sale 1988, agreement 810. The February specified which actually place, the Property took Joint apartment complex roofs of the entire $35,000from pay to Hacienda Venture would violation of substandard condition and proceeds in consideration sale housing regulations.4 The the District’s petition.5 The release dismissal of the tenant did not abate violation. Venture jurisdiction of the covered claims “within the 1989, Department January DCRA asked adjudicate.” (“DPW”) There Rent Administrator arrange of Public Works problem. specific mention of the roof was no necessary repairs Septem- roofs. On 28, 1989, DCRA The Tenant ber advised Property, closing Sometime after replaced the roofs Association DPW that the District’s Hacienda discovered a of building complex five cost 8, 1990, faulty. June repair work On was $80,000 approximately and that an assess- stop all District to work Hacienda asked the payment in October ment for would be made special District issued on the roofs. The 1989. 1990, demand- July assessment notice on $79,167.81 ing replacing the roofs on Agreement-Post “Escrow an undated request from Settlement,” (“escrow Property. receiving a agreement”) the After first tenant at trial that the Association Association testified the Tenant 1. On October condition of incorporation petition of “for not Hacienda did concern authorized the (TP 21, 130) acquiring, owning operating petition and purpose the second of roofs but that equity, low-yield Property] petition ... a limited [the not mentioned did. The second is housing of its mem- cooperative for the benefit findings fact. trial court's of Ha- An 1989 Resolution of bers.” October recognized the successor of the that was cienda Janu- inspectors 4. DCRA visited the sign authority to Association and had the Tenant ary the existence 20 and 1988 and confirmed Property. acquisition all documents for of roof leaks. transferring is dated title to Hacienda 2. The deed According of Mr. Chester 5. to the date but the effective November president Speight, of the Tenant Associa- former is December 1989. transfer $35,000 tion, to the tenants distributed was agreement. is no indica- signed There who petition filed tenant was Apparently a second was part the record that petition tion in 1987. That is in December applied cost the roof president the Tenant A former the record. documents, paid, regard Hacienda that the With to the contract assessment be that the “as is” adden- $79,167.81 Speight Mr. testified agent paid escrow to the District the Joint Ven- dum was executed because wrote, protest” “under is the inten- “[i]t competing purchase offer that turers had a challenge tion of the former owner to He stated that included an “as is” clause. special arranged assessment.”6 Hacienda agreement the November replacement paid for a of all of the roofs and settlement, signed “[a]t because: $125,576.25 August the sum of between agent made aware there was settlement November 1990. lien, selling pending we reduced the so agent paid After the escrow money building put price of the District, assessment to the the Joint Ventur- ...” He also escrow with this petition ers filed a in the Tax Division September identified a letter Superior Court in 1990 to recover the Department of which the Consumer *4 paid. permit The Tax Division refused Regulatory Affairs had advised Hacienda’s purpose Hacienda to intervene for the Department “the of Public counsel lodging against a cross-claim the Joint Ven- replaced the on the five Works has roofs turers, ruling but after in favor complex approxi- ... at an buildings at the Venturers, $79,- the Tax Division ordered the $80,000.” Speight mate cost of Mr. also 167.81 refund to in an be interest during used identified the settlement sheet bearing pending escrow account the conclu- closing Property, indicated that and brought by sion of a civil in action Hacienda Paragraph repair a “roof es- 516 reflected Superior the Civil Division of the Court. crow, eighty thousand dollars.” Mr. John Thompson, signed the contract on who sales Complaint Hacienda’s Venturers, confirmed behalf of the Joint Hacienda filed a civil action that the “as is” clause was added because seeking equita- Joint Venturers both competing offer that included the clause. ble and relief. Count one of com- testimony, During his he was not asked plaint prayed declaratory judgment for a re- agree- about the November escrow garding entitlement to the tax refund. though present during ment even he was requested imposition Count two of a con- closing Property. structive trust on the tax refund to avoid proposed cost regard With to the actual or unjust enrichment Joint Venturers. repair, of the roof the trial reveals Counts three and four for breach were claims $79,- the District assessed Hacienda negligent of contract and waste. repair proved 167.81 for its roof which later The Bench Trial paid faulty, to be and that Hacienda Function Inc., $125,576.25 During day April a two bench trial in and Enterprises, to correct Mr. replace the work done the District. three witnesses testified for Hacienda: Jo- Lewis, Thompson testified that the Joint Venturers seph employee Department an accepted proposal Rice from Commer- Regulatory of Consumer and Affairs who Roofing in March to do the roof cial described the District’s involvement $39,750. repair the District for issue; Gray, general manag- roof Robert Venturers that the Dis- informed roofing company er of the commercial hired repair preparatory work for the roof trict’s replace Dis- Hacienda to correct and already progress Joint Ven- work; repaii’ trict’s roof Chester turers were too late their efforts.7 Speight, president former of the Tenant As- Findings Trial and Conclu- The Court’s sociation. One witness testified behalf sions Venturers, Thompson, D. for- the Joint John co-manager apartments day mer of the Hacienda trial in After a two bench findings re- made several factual tidal court and one of the Joint Venturers. $1,169.97 preparatory undertook its probably when the District additional constituted penalty steps; interest. to the Joint under the District's order Venturers, days three remained. Thompson that the time for the Joint 7. Mr. stated expired repair to do the roof had not Venturers neglectful for them actions garding property, the owners of the tenant defendants transaction, complaints, the and the roof of the Hacien- prior sale their role as owners problem. The trial court also concluded in an un- Apartments, [would] result da proved Hacienda had not claims. expected Consequently, windfall.” because There was no breach of contract imposed to avoid a constructive Hacienda had taken the in an “as unjust It of the Joint Venturers. enrichment condition, is” knew the defective roofs recovery “to the amount limited Hacienda’s prior to and had assumed the risks sale reasonably expected to be the both Hence, associated with the defects. repairs,” and ordered the cost of the needed sale, the Joint Ventur- $79,167.81 consummation plus accrued inter- escrow sum of obligation (5) ers had abate the substand- no post-judgment five est and interest of Significantly, ard the trial court conditions. paid percent to be over Hacienda. finding parties, by made no as whether duly appeal.9 an noted Joint Venturers executing November Analysis II. agreement, payment to intended the escrow repair in the applied be toward the roof (1989 § 17-305 Under D.C.Code event that the District was entitled neither facts Repl.), “may we both as to the review repair, issue a notice of assessment law, set judgment and the but nor a lien for costs. More- to enforce ap of law unless except aside errors *5 over, finding the trial court made no factual plainly wrong or pears judgment is that the as the reasonable cost of the roof to The support it.” trial to without evidence failed, negligent waste claim Hacienda’s findings “are reviewed defer of fact court’s because, seeking trial court concluded ‘clearly entially erroneous’ stan under the District, it relief from the asked District States, 618 A.2d United dard.” Griffin Property.8 on the to cease work trial court’s “[t]he its ruling against Hacienda on After under the ... are reviewed conclusions claims, judgment for trial court entered standard.” Id. de novo non-deferential According Hacienda on claim. matter, whether we must determine court,' suggested record to the trial “[t]he support grant findings trial court’s parties expected the defendants that both judgment Hacienda. of the neces- would bear the reasonable costs expect not sary repairs. The did A. poor quality of to increase due to the costs insist that appeal, On the Joint Venturers by plaintiffs request performed at the work imposition of a constructive did the of Columbia. Neither the District unjustly Hacienda be- enriches tax refund arising from parties expect the assessment Prop- to take cause Hacienda contracted entirety.” in its work to be abated such condition, and because erty in an “as is” Moreover, court found that the Joint the trial as- pay District’s only agreed to sellers of Columbia “violated the District Venturers ar- repair. Hacienda roof sessment for the Housing that the involvement Code that the parties contemplated gues that direct result of Columbia was the the District of re- the cost would bear Joint Venturers of their abandonment of the defendants’ by the escrow pairing the roofs as indicated plaintiff, toward duties as landlords further, inequita- it be agreement, and would of the to the defendants A refund tenants. would, full cost Hacienda bear the ble for in effect reward in escrow funds held appeal judge's con- did the trial 9. Hacienda alleged Joint Venturers that 8. Hacienda claims, presumably be- damage Property prevent to its clusions as failed alleged complaint "an be prevailed The District of its District. on count two cause faulty interloper” whose imposition request unwanted of a for which involved Property's Hacienda value. Since decreased unjust enrichment. to avoid constructive trust and "invited” the complained to the District repairs, court found the trial to make the District interlop- "an unwanted was not District er." $125,576.25 parties’ regarding the ex- repairs, quoted language since the to constitute a find- anticipated pectations was intended be escrow fund would executing parties’ intent ing as to the repair used for the roof not antici- and did agreement, then pate faulty November escrow repairs. District’s some tension between there Hacienda relies on the November judge’s holding that finding $82,000 agreement under which of contract. there was no breach $80,000 purchase price was set aside— subject testimony is less than designated repair.” which was “roof Thompson, the witness for enlightening. Mr. sum, agreeing to set aside this Hacienda Venturers, testify regarding contends, did not the Joint clearly recog- the Joint Venturers Speight Mr. this matter. The nized title to the would not Furthermore, ambiguous. Hacienda is pass to repairs.10 Hacienda without the although record contains actual roof re- argue The Joint Venturers the tax pair by the District costs incurred properly belongs They refund to them. as- $79,167.81 amount of and Hacienda designed sert that the escrow $125,576.25, as an estimat- amount of as well only to an cover “assessment” and that “De- $39,750 roofing company from a ed cost of obligated pay fendants never themselves to pre- with which the Joint Venturers Plaintiff amount in relation to the contract, pared trial made no Apartments.” roof of the Hacienda finding as to the “reasonable costs of neces- (1) However, Paragraph post one set- sary repairs.” agreement provides tlement escrow that: Agent “Escrow shall hold in an interest bear- judge predicated trial her ing escrow account the total sum of finding judgment in favor of Hacienda on a (‘Escrow Amount’), as reflected on Lines 516 unjustly that the en Joint Venturers were and 517 of the Settlement Statement for the imposition riched. The of a constructive *6 Street, (‘Property’)_” sale'of 28 58th S.E. equitable remedy. Although an a is Paragraph 516 of the Settlement Statement judge ap trial considerable discretion in has $80,- specifies: Repair “Roof Escrow [-] Gray, 412 plying remedy, Gray the Paragraph 000.00” and 517 reads: “Mechan- (D.C.1980), 1210 the determination $2,000.00.” ics Lien Escrow [-] unjustly whether Venturers were the Joint meaningful analysis requires
enriched some B. expectations parties, of the reasonable agreements signed in as reflected the Although attempted the trial court to dealings. the entire course of them comprehensively deal with the rather com record, case, plex raised far we can discern from the issues we believe So as and, findings pertinent agreements that her are insufficient the in this case were some measure, contradictory. negotiated by parties at arm’s potentially On the counsel hand, agree, explicit- judge length. parties If the did not one found prove ly implicitly, claims at the Joint Venturers Venturers had failed to their repair, of was sold “as is.” were to bear the reasonable cost law because hand, judge’s opin trial cannot convert their On the other then the court ion, something by in- suggests parties agreement into it was not “the record that both If, remedy. the other voking equitable an on expected that the defendants would bear hand, expec- a necessary repairs.” If the shared reasonable reasonable cost appear suggest 810 resolved an also to and the Joint Venturers. TP 10. The Joint Venturers landlord, 21, 1989, "Agreement not an issue of Set- issue between tenants that the November Moreover, buyers set- and sellers. tlement and Release" between the Joint Venture between regarding made no mention of the and the Tenant Association the resolu- tlement 21,130, addition, Jackson, spe- George VijonRealty, TP which P. et al. v. TP conditions. In tion of singled problems, cifically was not TP 810 out the roof 810 settled the roof issue. and, agreement. brought obviously part Nei- as of the settlement was on behalf of seven tenants recognized, regarded petitions included in the ther of these tenant the trial court could not be appeal. as a of the issue between Hacienda record settlement 192 (D.D.C. Kurtz, 1138, 1140 respon- F.Supp. 450
tation that the
Venturers were
repair,
1980)[1978];
Shapiro,
it
for the reasonable cost
then
Commissioner v.
sible
appropriate
trial
to enter
634 n.
1074
U.S.
S.Ct.
judgment accordingly,
determining the
after
Only
n.
when it
193 $2,000.” generally According The term “as is” means “that to the con- [-] the Escrow buyer purchasing property present tract, is its only condition under which Mulder, state or condition.” Olmsted v. 72 agent the funds with- could disburse (Div. Wash.App. 863 P.2d 1359 1 approval “if a lien out the Sellers 1993) (citations omitted); see also Pele v. which creates a is recorded Simmons, Ill.App.3d 249 189 Ill.Dec. policies valid claim under the title insurance (1993). 620 N.E.2d 14 Such Agent issued Escrow in connection with provisions place pur- the risk of loss Otherwise, Property.” disburse- sale of the States, chaser.1 Varkell United 167 Ct.Cl. required approval ment Sellers 334 F.2d parties’ rights to and the Purchaser. The depend upon interpreta- the escrow fund The trial court determined the Pur- provisions tion of these of the contract.3 The fully chaser was aware of the defects in the ac- property on the date of trial court determined that the escrow that it assumed the risk of loss associated count was intended “to cover the cost of Therefore, arising replacement with these defects. it found assessment from the against the Apartments Purchaser. The Purchaser has then the roof on the Hacienda appealed judgment from the being performed by adverse the District of Colum- legal added.) argued its nor Thus, claims error in the trial (Emphasis appears bia.” legal ruling court’s anas alternative basis for interpreted the court the contract Therefore, sustaining judgment.2 wheth- only mean that the funds were set aside er ruling the trial court erred discharge any might lien which Purchaser’s claims is not before us on against property order for the Sellers appeal. it is essential to ex- title, convey clear rather than to cover the amine the Purchaser’s claims for an case, any repairs. In that cost the funds understanding adequacy inadequacy or belonged to the Sellers under the terms of remedies. the contract. The fact that the ob- they bargained tained that for which under The Escrow Fund not, itself, the contract is a for the basis $82,000 place contracted to equity. intervention of proceeds from the into sale an escrow account with interest to be credited to the Conclusion Sellers. The sum was to be held in escrow specific as indicated on two lines the set- Since Purchaser has cause of action tlement statement damages reflected “Roof Re- of contract or breach pair negligent pursued Escrow Lien in a [-] Mechanics waste which could be Co., though Fidelity 1. Even the risk of loss for deterioration of Co. v. United States & Guar. by ordinary (D.C.1973). caused wear and tear 285 n. 5 purchaser, be on the it has been held that damage by “if the seller causes the acts of waste ambiguity, "giving 3.We review contract for by negligence caring property, language plain meaning, without refer- [the] *8 placement purchaser usual of risk of loss on ence to rules of construction." Sacks v. apply.” does not & Richard R. Powell J. Patrick (D.C.1990) (citation Rothberg, 569 A.2d 154 § Rohan, Powell on Real omitted). quotations and internal marks Where (1995); Northwest Kansas Area Vocational-Tech- dispute, "deter- the terms are in this court must Wolf, Kan.App.2d 6 nical Sch. v. 635 P.2d person position what reasonable mine of the light 1270 consider- these parties thought disputed would have ations, by inserting it is doubtful that an "as is” language Intercounty Corp. v. meant.” Constr. contract, destroy clause in the materially a seller can Columbia, (D.C.1982). District 443 A.2d 32 worsen condition requires This determination consideration of execution, fault, through after its its own without surrounding making circumstances being resulting damages. liable for contract, usages which the know or have proof absent the Purchaser’s stances, of such circum- know, and the intent of the reason prevail it would not be entitled to on its entering agreement. Id. If the terms are still exception. claim under this meaning, susceptible to one definite remain- Ass'n, strongly ing ambiguities interpreted Group Reyes, will be 2. v. 672 A.2d See Health (D.C. 1996); Inc. omitted). (citations 75 see Nationwide Ins. the drafter. Id. n. 1 but 194 law, equitable
suit at not avail remedies are Marshall, 29; supra, See 468 A.2d at
able.
Chavin, supra,
unsuccessful ei insufficiency
ther because of of the evidence legitimate
or a on the terms of defense based contract, does not entitle the Purchaser Marshall, equitable relief.4 See demand A.2d at 29. Since the are entitled Sellers contract, under as inter court,
preted by the trial there would be no
inequity retaining it.5 their Under these
circumstances, the Sellers do not withhold Purchaser,
unfairly thereby funds from prevent
warranting intervention to Gray,
unjust Gray v. enrichment. See (D.C.1980). 1208, 1210-11 For the fore reasons,
going respectfully I dissent from the
opinion of the court. HOBSON, al., Appellants,
Everett K. et COLUMBIA, Appellee.
DISTRICT OF
No. 94-TX-1646. Appeals. Columbia
District of Court
Argued 1996. Oct. Dec.
Decided *9 price purchase part prove 5. This sum formed have dam- Purchaser also would doubt, property. took into No place injured party ages. law seeks to agreeing property in account the condition breach, been no position as if there had the same by written price. They addressed upon a also Twine, Fleming position. better and the to be escrowed the amount (D.C.1948). thereby. contingencies covered